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2019 DIGILAW 105 (CAL)

RAJESH PODDAR v. NIRMALA DEVI DAGA

2019-01-22

BISWAJIT BASU

body2019
JUDGMENT : BISWAJITBASU, J. 1. The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiffs in a suit for declaration and injunction and is directed against the order dated July 30, 2018 passed by the learned Civil Judge (Senior Division), 9th Court at Alipore, in Title Suit No. 2405 of 2016, whereby the learned Trial Judge has accepted the written statement filed by the defendant No. 9 as the same was filed within the prescribed period of time for filing written statement and accepted the written statements filed by defendant Nos. 1 to 8 and 10 beyond the prescribed period of limitation upon payment of costs. 2. The plaintiffs are aggrieved by the said order as the said defendants did not file their said written statement for a pretty long time keeping their application under Order VII Rule 11 of the Code, praying rejection of the plaint of the suit pending for a long time and ultimately did not press the said application but made pendency of the said application as the ground for extension of the time for filing their written statement. 3. Mr.Chakraborty, learned advocate appearing on behalf of the petitioner submits that the defendants after their appearance did not file their written statement on the ground of pendency of their application under Order VII Rule 11 of the Code seeking rejection of the plaint but ultimately did not press the said application. He submits that the said provision of the Code cannot be used as a tool to recover the lost opportunity of filing the written statement of the suit. In support of his such contention he relies on the decision of the Hon'ble Apex Court in the case of R.K. ROJA VERSUS U.S. RAYUDU AND ANOTHER reported in, (2016) 14 SCC 275 and the decision of the learned Single Judge of Delhi Court in the case of Nunhems India Pvt. Ltd. versus Prabhakar Hybrid Seeds reported in, (2013) 197 DLT 393 . 4. Mr.Prabalmukherjee, learned senior advocate appearing on behalf of the defendants/opposite parties submits that the obligation of the defendants to file written statements within the time stipulated under Order VIII Rule 1 of the Code starts from the date of service of summons of the suit upon the said defendant. 4. Mr.Prabalmukherjee, learned senior advocate appearing on behalf of the defendants/opposite parties submits that the obligation of the defendants to file written statements within the time stipulated under Order VIII Rule 1 of the Code starts from the date of service of summons of the suit upon the said defendant. He submits that in the present case it will appear from the records that some of the defendants appeared in the suit even before formal service of summons upon them. He, therefore, submits that the rigor of filing of the written statement within the time stipulated under the said provision of the Code has been extended by the learned Trial Judge in exercise of his discretion upon payment of costs which cannot be said to be a capricious exercise of judicial discretion. 5. Heard learned advocate for the parties perused the materials on record. 6. The learned Trial Judge in the order impugned considered the applications filed by defendant Nos. 1,2,3,4 and 10, 5, 6 to 9. The learned Trial Judge in the order impugned has recorded that the defendant No. 5 appeared in the suit on June 27, 2016 and the said defendant on August 24, 2016 filed an application under Order VII Rule 11 of the Code praying rejection of the plaint. The defendant Nos. 1,2,3,4 and 8 appeared in the suit on August 24, 2016 and the said defendants also on September 6, 2016 filed a similar application for rejection of the plaint under the said provision of the Code and defendant Nos. 1 to 4, 8 and 10 also filed such application with an identical prayer. The learned Trial Judge also records in the order impugned that summons of the suit since was not served upon defendant Nos. 6, 7, 9 and 11 the plaintiff was directed to take steps for such service upon the said defendants. 7. The hearing of the applications under Order VII Rule 11 of the Code continued for a long time till a direction was passed by this Court in C.O. 582 of 2018 directing the learned Trial Judge to dispose of the said applications within May 15, 2018. The hearing of the said applications, in terms of the order of this Court when was fixed on May 15, 2018 the defendant Nos. The hearing of the said applications, in terms of the order of this Court when was fixed on May 15, 2018 the defendant Nos. 1 to 5, 8 and 10 did not press their applications under Order VII Rule 11 of the Code and the said applications were dismissed accordingly. The defendant Nos. 1 to 7 and 10 on the same date filed separate written statements, whereas defendant Nos. 8 and 9 prayed time to file written statement. On June 11, 2018 the defendant Nos. 8 and 9 filed written statement and defendant Nos. 1 to 10 filed separate application for acceptance of their written statement filed beyond the prescribed period of limitation. 8. The learned Trial Judge in the order impugned upon consideration of the decisions of the Hon'ble Apex Court in the case of Kailash Versus Nanhku and others. reported in, AIR 2005 SC 2441 and in the case of M/s R.N. Jadi and Brothers and others. versus Subhashchandra reported in, AIR 2007 SC 2571 although has come to a finding that the Hon'ble Apex Court took a stringent view against non-filing of written statement within the specific time frame but upon consideration of the Calcutta High Court amendment of Order VIII Rule 1 of the Code decided to exercise his discretion to accept the written statements filed by the said defendants beyond the prescribed period of limitation upon payment of costs. 9. The learned Trial Judge in the order impugned has come to a finding that pendency of an application under Order VII Rule 11 cannot be used as a shield for non-filing of the written statement and in this case the suit was entangled for a long period for the hearing of those applications, but in a fine morning, good sense prevailed over the defendants and they did not press the said application. The learned Trial Judge in the order impugned has also recorded that whether said act of the defendants is mala fide or bona fide which resulted the delay in the progress of the proceeding cannot be considered causally. 10. The learned Trial Judge in the order impugned has also recorded that whether said act of the defendants is mala fide or bona fide which resulted the delay in the progress of the proceeding cannot be considered causally. 10. The learned Trial Judge in spite of coming to such a finding without investigating into the bona fide and/or mala fide of the defendants in pursuing their application under Order VII Rule 11 of the Code has accepted the written statements filed by the said defendants beyond the prescribed period of limitation in exercise of his discretion which cannot said to be proper exercise of judicial discretion. 11. The provisions of Order VII Rule 11 of the Code cannot be misused to avoid the rigor of Order VIII Rule 1 of the Code as held in the decision reported in (2016) 14 Supreme Court Cases 275 (supra) relied on by Mr.Chakraborty. The paragraph 6 of the said report being relevant to the context is quoted below:- "6. In Saleem Bhai case, this Court has also held that : (SCC p. 560, para 9) "9.... a direction to file the written statement without deciding the application under Order VII Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction by the trial Court." However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement." The submission of Mr.Chakraborty, that the defendant can file the application under the provision of Order VII Rule 11of the Code seeking rejection of the plaint but filing of such application will not extend the period of limitation for filing written statement within the time prescribed under Order VIII Rule 1 of the Code gets support of the decision of the learned single Judge of Delhi Court reported in (2013) 197 DLT 393 (supra). 12. 12. The learned Trial Judge in the order impugned since has observed that the mala fide and/or bona fide of the defendants in filing the application under Order VII Rule 11 should not be considered casually, is under obligation to investigate the said issue properly before accepting the written statements of the defendants filed beyond the prescribed period of limitation, particularly when the prayer for condonation of delay in filing such written statements has been sought to be explained citing pendency of the applications under Order VII Rule 11 of the Code as a ground thereof. The order impugned is, therefore, set aside by directing the learned Trial Judge to decide the applications filed by the defendant Nos. 1,2,3,4 and 10, 5 and 6 to 9 afresh in the light of the observations made above. It is, however, made clear that the written statement of the defendant No. 9 accepted by the order impugned is not interfered with. The learned Trial Judge is requested to dispose of the applications of the said defendants expeditiously, preferably within a period of three weeks from the date of the communication of this order without granting any unnecessary adjournment to either of the parties. C.O. 2742 of 2018 is thus allowed. Urgent photostat certified copy of this order, if applied for, be supplied to parties upon compliance with all requisite formalities.